Court orders Icasa not to implement new data rules

The high court in Johannesburg on Thursday ordered communications regulator Icasa not to implement new consumer protection regulations dealing with data expiry and rollover until judgment is handed down in the matter. The rules were to take effect on Friday.

The court has ordered that Icasa must, within 10 days, file a responding affidavit in an urgent application brought by mobile operator Cell C, which will then have a further five days to reply.

Icasa said earlier on Thursday, before the court ruled on the matter, that it still expects South Africa’s mobile operators to comply by the original deadline of Friday, 8 June for implementation of the new regulations. However, it said it will not penalise them for non-compliance — for now.

Cell C advised the regulator that while it was fully committed to complying with the regulations, it was impossible to meet the proposed timeline

“Icasa has decided that it will defend the application by Cell C and, to this end, has resolved to postpone the effective date until the matter has been heard and pronounced upon by the court,” it said.

But the matter is now out of Icasa’s hands. The ruling by the court, which TechCentral has seen, said that until the court has made a finding in the matter, Icasa “will not take any steps to implement” the regulations.

Cell C approached the high court on Wednesday seeking an urgent interdict against Icasa, saying the regulator had not given it sufficient time to implement new data expiry rules meant to protect consumers.

The rules, known as the end-user and subscriber services charter regulation amendments, were published on 7 May, with operators given one month to comply.

“Prior to publication, Cell C advised the regulator that while it was fully committed to complying with the regulations, it was impossible to meet the proposed timeline,” the company said in a statement.

Telkom, MTN and Vodacom have also voiced concern about the short time period the operators had been given to comply. Cell C said it needs at least six months to comply fully.

‘Continuing to engage’

Telkom told TechCentral on Thursday that it is considering joining Cell C’s court application. The company is “continuing to engage with Icasa on its request for a three-month extension on the implementation of the requirements of the regulations”, it said. “We hope to have some feedback from Icasa by close of business tomorrow (Friday). In the event that feedback is not received, Telkom will set out its version to the court in the application brought by Cell C.”

Vodacom, meanwhile, said that given Icasa’s tight deadline, it has submitted a proposal regarding a “phased implementation” of the regulations and “is awaiting a response on the matter”. It said it is “fully committed to implementing the regulations and our technicians are working hard to get our systems ready”.

Icasa said the regulations are needed to address consumer concerns about “unfair business rules imposed by licensees in the provision of data services to consumers”.

“In particular, the regulations seek to grant consumers relief against the expiry of data, bill shock occasioned by lack of transparency on out-of-bundle charges and other rules which are prejudicial to consumers.”

It added that the effect of the delay in implementation will be that “consumers will continue to be prejudiced by the continued application of the impugned business rules”.

“This means consumers will for the foreseeable period of the extension not be able to carry over their unused data and will continue to be charged high out-of-bundle rates without their consent.

“Icasa is required, in terms of its legislative mandate, to act and regulate in the public interest (particularly consumers). It is Icasa’s view that granting such an extension would not be in the public interest. Hence, the decision to refuse the extension.”

Specifically, the amended regulations state that operators must:

Offer data rollover to customers, though Icasa has left to the companies to determine how long that period of rollover should be;

Send usage depletion notifications to consumers once they have used 50%, 80% and 100% of their bundles;

Ensure that out-of-bundle data is explicitly opt-in only — consumers must not automatically be defaulted to out-of-bundle rates when their bundles are depleted;

Provide an option to offer unused data to other users on the same network. — (c) 2018 NewsCentral Media